The U.S. Department of Agriculture’s (USDA) Food and Nutrition Service (FNS) announced May 5 that any K-12 school receiving government funding must adhere to transgender-inclusive policies or risk losing the federal funds that enable them to offer affordable or free breakfast, lunch and snacks to students of low-income families.

“USDA is committed to administering all its programs with equity and fairness, and serving those in need with the highest dignity,” said Secretary of Agriculture Tom Vilsack. “A key step in advancing these principles is rooting out discrimination in any form—including discrimination based on sexual orientation and gender identity. At the same time, we must recognize the vulnerability of the LGBTQI+ communities and provide them with an avenue to grieve any discrimination they face. We hope that by standing firm against these inequities we will help bring about much-needed change.”

Transgender-inclusive policies often include allowing biological boys who identify as transgender into female spaces—such as bathrooms, showers and sleeping quarters. 

The USDA claims that this action is consistent with the Supreme Court’s decision in Bostock v. Clayton County, which held that LGBTQ persons are protected under the anti-discrimination provisions of Title VII of the 1964 Civil Rights Act. But Indiana Attorney General Todd Rokita argues “the Biden administration is grossly extending the Bostock holding where it does not belong.”

The Bostock opinion applies to Title VII, also known as the “employment litigation section” of the Civil Rights Act of 1964. But the ruling itself does not mention Title IX of the Education Amendments of 1972, which “prohibits sex discrimination in any education program or activity receiving federal financial assistance.”

“It seems to be playing politics with feeding poor kids, which is really unfortunate,” John Elcesser, executive director of the Indiana Non-Public Education Association, told The Federalist. “Because if a school feels like they cannot participate because it’s in conflict with their mission or values, if a religious exemption is not granted, you’re taking away a program that’s feeding low-income kids.”

Before many schools shut down in response to Covid-19, the National School Lunch Program fed nearly 30 million kids every school day, in approximately 100,000 public and private schools and residential care facilities.

Although the USDA has made this announcement, it is not yet legally enforcement. The proposed regulation must first be formally issued, and then the public will have several months to comment. Federal agencies must spend several more months reviewing all the comments before issuing a final regulation—which can then be challenged in court.

A U.S. Department of Education spokesman told The Federalist that the proposed regulation will be issued to the public in June.

Photo: Edwin Remsberg/Alamy